New York State Court of Claims

New York State Court of Claims

ANJO v. THE STATE OF NEW YORK, #2007-036-102, Claim No. 109895


Damages awarded for partial appropriation of vacant land in Suffolk County. Plaintiff’s alleged highest and best use was based on speculative development plans that did not provide a basis for an award of consequential damages. The only consequential damages arose from State’s construction of a sump area on the taken land and the resulting negative aesthetic effect on the remainder.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
By: J. Gardner Ryan, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 23, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed and unassigned claim for the partial appropriation by the State of New York of claimant’s real property pursuant to Section 30 of the Highway Law and the Eminent Domain Procedure Law. The project is described as Mattituck-Greenport Parts 1 and 3, SH 8229, Map No. 85, Parcel No. 91 (fee taking, Exhibit B) and Map No. 86, Parcel No. 92 (temporary easement, Exhibit A). The court adopts the description of the property as shown on the maps filed in the County Clerk’s Office. The claim was filed on September 27, 2004 and contemporaneously served on defendant. The property is located in the Village of Cutchogue, Town of Southold, Suffolk County, on Griffing Street, about 300 feet north of its intersection with Main Road (New York State Route 25). Prior to the appropriation, the parcel consisted of 7.1 ± acres of vacant land. The State took 1.7 ± acres (73,765 square feet), leaving a remainder of 5.4 ± acres. Claimant seeks direct, severance and consequential damages, as well as compensation for a temporary easement and for an alleged de facto temporary easement. Subsequent to trial, the court viewed the property pursuant to Court of Claims Act § 12(4). The parties stipulated that title vested with the State on January 30, 2004, that claimant was the fee owner on that date and that the temporary easement lasted from the vesting date through February 16, 2006 (24.5 months). The parties also agreed the property was zoned Hamlet Business (HB) under the Town of Southold zoning ordinance.

Prior to the taking, the parcel was generally rectangular in shape, with 783
frontage on Griffing Street. The purpose of the appropriation was to construct a recharge basin for drainage purposes, for which the State took a flag shaped parcel, approximately equivalent to the southwestern quadrant of the original parcel, together with a 22
wide strip providing access to Griffing Road.

A condemnee is entitled to “just compensation” when the State exercises its power of eminent domain and the amount is generally determined by reference to the fair market value of the property according to its highest and best use (Town of Islip [Mascioli], 49 NY2d 354 [1980]). In determining fair market value, “the condemnee is entitled to have the appraisal based on the highest and best available use of the property irrespective of whether he is so using it” (Keator v State of New York, 23 NY2d 337, 339 [1968]). Where the State takes part of a condemnee’s property and leaves a remainder, just compensation includes not only the value of the portion taken but, where adequately proven, any impairment of value to the remainder, expressed as either consequential damages (damage resulting from the use to which the appropriated portion is put; see e.g. Matter of City of New York (Metro Inv. & Credit Corp., 288 NY 75 [1942]; Dennison v State of New York, 48 Misc 2d 778, affd 28 AD2d 28, affd 22 NY2d 409) or severance damages (damage resulting from the effects of the loss of the taken portion; see e.g. Coldiron Fuel Ctr., Ltd. v State of New York, 8 AD3d 779 [3d Dept 2004]). Damages are computed by comparing the value of the whole property before the taking and the value of the remainder after (Diocese of Buffalo v State of New York, 24 NY2d 320 [1969]; Chemical Corp. v Town of E. Hampton, 298 AD2d 419 [2d Dept 2002]).

In addition to presenting widely divergent views of the value of the property before the taking, the parties, and their appraisers, disagreed as to whether the property sustained consequential or severance damage as a result of the taking. Although both appraisers used the market data approach in valuing the property, they arrived at markedly different results. Claimant’s appraiser found a “before” value of $10 per square foot and an “after” value of $5 per square foot, i.e. the remainder sustained $5 per square foot consequential/severance damages. Total damages, according to this analysis, amounted to $737,650 direct damages (73,765 square feet taken multiplied by $10) plus $1,182,915 consequential/severance (236,583 square feet remaining multiplied by $5) for a total of $1,920,565. Defendant’s appraiser found a “before” value of $3.50 per square foot and, based on his conclusion that there were no damages to the remainder, utilized the same figure for his “after” valuation, computing total damages as $258,200 (73,765 square feet taken multiplied by $3.50). None of these figures include the temporary easement or the alleged de facto temporary easement.

Defendant’s appraiser found the highest and best use of the property to be “commercial development, in accordance with the ‘HB’ Hamlet Business Zoning” (Defendant’s Appraisal, Exhibit C at 19). More specifically, Claimant’s appraiser found the highest and best use was for “[c]ommercial development with some residential use on the second story of certain buildings” and the “maximum use” of the property was “demonstrated” in the engineering report of Barrett, Bonacci & Van Weele, Consulting Engineers, showing development of a “campus style compound” containing eight buildings (Claimant’s Appraisal, Exhibit 2 at 23).

Kevin P. Walsh, a member of the Barrett firm, testified that he was retained in early 2005 to prepare site plans showing potential development of the property both before and after the taking. Walsh testified that hamlet business (HB) zoning allowed for “a mix of uses, different commercial and business type uses in addition to apartments, residential apartments, that could be constructed in conjunction with the business and commercial uses” (Vol I at 25). The site plans prepared by Mr. Walsh’s firm (Exhibit 1) were based on its determination that the Southold Town Zoning Code allowed for development of the property with retail buildings and accessory apartments above.

Mr. Walsh’s “before” site plan shows eight retail buildings – six of them 7,125 sq. ft. each, and two smaller – for a total of 52,600 sq. ft. of retail space; four of the buildings each including a second story with three 950 sq. ft. apartments aggregating 11,400 sq. ft. of residential space.

The “after” plan shows four retail buildings, each of 4,650 sq. ft., for a total of 18,600 sq. ft. of retail space; each building including three 950 sq. ft. apartments, the same 11,400 sq. ft. of residential space as in the “before” plan.

Mr. Walsh testified that the combination of retail and residential use reflected in his “before” plan represented his opinion as to “the maximum productive yield of the site because of the sewage density restrictions that the county health department places on the property” (id. at 40). He explained on cross-examination that he could have allowed for the same retail space in one large building but he needed at least four retail buildings in order to include 12 apartments based on the requirements of the town’s Sanitary Code.

Mr. Walsh conceded the town’s Zoning Code allowed for many different types of commercial and residential uses in HB zoning – “there are many, many, many possibilities” (id. at 62) – of which the plans he selected were one. He did not do any marketing study to examine the need for the proposed retail use of the property. Although the applicable minimum lot size of 20,000 sq. ft. would allow for subdivision into multiple residential lots, he did not examine the possibility of a residential subdivision.

Mr. Walsh’s “after” plan provided for a 64% reduction of the retail space from the “before” plan, although the appropriation only took 23.7% of the original property. This result was dictated by his choice to retain the same amount of residential space, a decision which limited the amount of retail space available because of the requirements of the Sanitary Code and parking considerations. Mr. Walsh’s decision was not buttressed by any specific calculations or indeed by any evidence other than his opinion that his plans represented the “maximum productive use of the property” (id. at 84). Under his plans, the apartments accounted for the majority of the allowable sewage flow, so the decision to keep the same number of apartments essentially dictated the amount, and the permissible uses, of the remainder of the property. Under the “before” plan, the apartments used up 63% of the allowable sewage flow. Had that same ratio been maintained in the “after” plan, the result would have been nine apartments, rather than 12, and there would have been only a 25% reduction in allowable retail space – i.e. proportional to the loss of acreage – rather than the 64% reduction reflected in Mr. Walsh’s “after” plan.

Another aspect of Mr. Walsh’s “after” plan questioned by defense counsel was why it showed no development on the entire southeastern quadrant of the property, while the “before” plan showed development of the entire parcel. Mr. Walsh explained that this result also was dictated by the decision to retain the 12 apartments, since the lot size after the taking with 12 apartments did not allow for any development beyond what is shown on Mr. Walsh’s plan. He was unable to identify any objective factor supporting his choices on these issues, nothing beyond his subjective opinion that 12 apartments with 18,600 sq. ft. of retail space was preferable to 9 apartments with 40,182 sq. ft. of retail space.

Turning to the parties’ respective appraisals, although both appraisers each selected four ostensibly comparable sales, each chose four different parcels. Claimant’s Sale No. 1 was a 1.418 acre parcel on Main Road (Rt. 25) in Mattituck, a village about three miles west of Cutchogue, which sold on September 1, 2004 for $33.19 per square foot ($33.19/sf). Claimant’s appraiser, Elinor Brunswick, adjusted that figure −9% for time, based on a 15% per annum increase in real estate values, for a time-adjusted figure of $30.20. She applied a −20% adjustment for location, to account for two things: location of the parcel in Mattituck, which she described as more “commercially intense” than Cutchogue (Vol I at 152), and its location on Main Road (Route 25), as opposed to the subject which is 300 feet north of Main Road. She also adjusted the figure −15% for size, to take into account the generally greater per-unit values for smaller parcels, −10% for the sale’s location on a corner and +10% for “marketability,” which she explained was intended to reflect the subject being “unique in its size” in the town, with a “flexible type of development potential” (id. at 154). All of these adjustments (a net of −35%) indicate a value for the subject of $19.63/sf.

Claimant’s Sale No. 2 was a 27,750 square foot vacant parcel on Middle Road, an east-west highway north of Main Road, in Southold, that sold on January 21, 2004 for $9.00/sf. She adjusted this figure +5% for location, based on the sale’s location on a highway without the foot traffic that exists in a village setting near the Cutchogue Post Office, and −15% for the sale’s smaller lot size. She also made a +10% adjustment to account for marketability, the same reasoning she applied to Sale No. 1. With all adjustments cancelling each other out, the indicated value based on this sale was $9.00/sf.

Claimant’s Sale No. 3 was a 1.75 acre vacant parcel in Mattituck, on the corner of Main Road and New Suffolk Avenue, that sold in July 2002 for $440,000, or $5.75/sf, which, adjusted 24% upward for time, indicated a value of $7.16. Ms. Brunswick applied adjustments of −15% for location, −15% for size and −10% to account for the sale’s corner location. A +10% adjustment for marketability was applied, as with claimant’s other sales, for a net adjustment of -30% which, applied to the time-adjusted $7.16 figure, indicates a value for the subject of $5.01/sf.

Claimant’s Sale No. 4 was a 17,820 square foot parcel in Southold, improved by a building that claimant’s appraiser described as a shell, and which sold in October 2004 for $350,000. Claimant’s appraiser allocated $60,000 of the purchase price to the building,[1] leaving a balance of $290,000, or $16.27/sf which, adjusted downward 12% for time, yields a figure of $14.31. Applying adjustments of -10% for location, -15% for size, -10% for the sale’s corner location and +10% for marketability, the net adjustment of -25% yields a figure of $10.74.

All of Ms. Brunswick’s comparables were located in the Town of Southold and all were zoned either “HB” Hamlet Business or “B” Business. She testified that both designations allowed for a wide variety of commercial and mixed commercial/residential uses and that no adjustment was necessary with respect to the “B” Business-zoned parcels.

Based on those four indicated values – $19.63, $9.00, $5.01 and $10.74 – claimant’s appraiser selected a value of $10.00/sf as the fair and reasonable value of the subject on the taking date.

Defendant’s appraiser, James C. Barnett, Jr., selected four different parcels for use as comparable sales in arriving at his value of $3.50/sf, or $258,200 in direct damages for the 73,765 square feet taken. However, a number of serious analytical and methodological flaws and inconsistencies were exposed on cross-examination – flaws that severely impaired the weight given to the appraiser’s testimony and report as an indicator of the property’s fair market value prior to the taking. The first such issue arose from a prior appraisal of the subject property (Exhibit 11) which Mr. Barnett had provided to defendant six months prior to his trial appraisal, and which valued the property at $1.75/sf as opposed to $3.50/sf in the trial appraisal. Notwithstanding these two figures, Mr. Barnett testified it was not his opinion that the property doubled in value over the six-month period, but rather accounted for the difference as being the result of his having chosen three out of four different comparable sales and having adjusted the one common comparable (Defendant’s Sale No. 2) differently in each of the two appraisals.

Mr. Barnett had no coherent explanation for his decision, six months later, to use 3 out of 4 different properties to evaluate the subject. He stated he had updated his analysis utilizing newer sales, yet three of the four sales he used in his appraisal for trial were available when he prepared the first appraisal. Although he acknowledged he probably was aware of Defendant’s Sale Nos. 3 and 4 at the time, he said he could not recall the reasons he did not use them as comparables initially.

Mr. Barnett also had no explanation for why he adjusted Defendant’s Sale No. 2 (in the trial appraisal) +25% for location when six months earlier his adjustment for that factor was −5%. Notwithstanding that he was addressing the same two properties in the same locations, the only reason he offered for this significant change was that “I just felt my opinion changed” (Vol III at 588). Mr. Barnett’s failure to account for his 30% change of mind in his location adjustment of Defendant’s Sale No. 2 within six months (from −5% to +25%) stripped his testimony in this regard of whatever probative value it might otherwise have had (Parisi v State of New York, 62 Misc 2d 378 [1970]).

The problems with defendant’s appraisal were not limited to those arising from inconsistencies with Mr. Barnett’s prior appraisal. For example, Defendant’s Sale No. 1 was a parcel located in Hampton Bays in the Town of Southampton, 22 miles away from the subject on the South Fork of Long Island. Mr. Barnett apparently felt the location of this “comparable” sale was so dissimilar to that of the subject that he applied a +40% location adjustment.

Defendant’s sale No. 3 was a commercial parcel in Mattituck that sold for $6.19/sf, which Mr. Barnett adjusted to $6.96 applying a 10% annual time adjustment. He adjusted that figure

−35% for location and −15% for size/shape, but he was unable to explain the reason for the location adjustment other than that Mattituck is west of Cutchogue and has a greater population. However, Defendant’s Sale No. 4 – which sold for $7.86/sf, time adjusted at 10% to $8.03/sf – is 9 miles east of Cutchogue, almost to Orient Point, and Mr. Barnett also adjusted the price of that parcel downward. Mr. Barnett admitted the sale was a residentially-zoned property, that he had not properly taken this factor into account in his appraisal, and that his −45% location adjustment, as well as his +5% zoning adjustment of the sale, were significantly in error. He did not explain why he chose it.

Overall, Mr. Barnett’s testimony in support of his appraisal was contradictory and unconvincing. In addition to the specific discrepancies highlighted here, including the seemingly arbitrary nature of his location adjustments, he failed to adequately explain his decisions in selecting these ostensibly comparable sales or the basis for his adjustments to them. The court has given his comparable sales analysis little weight.

Claimant’s analysis of “before” value, on the other hand, was generally well-supported and convincing, with the exception of two points. Ms. Brunswick ignored the fact that the purchaser of Claimant’s Sale No. 1 was CVS Corporation, which used the parcel as the last piece of an assemblage to construct a CVS store. This was a significant factor in the sale and it was not taken into account in claimant’s appraisal in the form of a negative adjustment for “plottage,” defined as “an added percentage to the aggregate value of two or more lots held in one ownership, and that it arises from the fact that such lots thus held in ownership may be utilized for large buildings and to a much greater advantage than if each lot were separately built upon” (Matter of Armory Bd., 73 App Div 152, 154 [1st Dept 1902]; see also Appraisal Institute, The Appraisal of Real Estate, 12 ed. 2001 at 197). Although defendant questioned Ms. Brunswick’s failure to take into account a bowling alley on the property, the court credits her testimony that the presence of the bowling alley, which was demolished after the sale, was irrelevant to the purchase price of the property and agrees with her decision not to allocate any of the purchase price to that building. Nevertheless, Ms. Brunswick failed to account for the increment to the purchase price attributable to the purchaser’s motivation to assemble this lot with the adjoining ones so it could build a large store. The court finds this failure was appraisal error and that a negative adjustment of 15% should have been applied to account for the plottage value which was a part of the sale price of Claimant’s Sale No. 1.

The court further finds that Ms. Brunswick’s “marketability” adjustment, which accounted for a +10% adjustment of all her comparables in the “before” situation, was unjustified and unsupported in the record. According to claimant’s appraisal, the adjustment was intended “to reflect the fact that a larger site such as the subject allows for greater flexibility in layout, and more uses are available to the developer that include residential apartments” (Exhibit 2 at 38). Given that Ms. Brunswick agreed with the generally accepted appraisal principle that when comparing large parcels with smaller ones, the smaller ones generally have greater per-unit values, and that she applied this principle by applying a −15% adjustment to all of her comparables (which ranged from 0.41 acres to 1.75 acres, compared with the subject’s 7+ acres), her attempt to explain the upward “marketability” adjustment as based, in large part, on the greater size of the subject seemed contradictory. When she was challenged on this point on cross-examination, Ms. Brunswick testified the adjustment was applied to take into account the allegedly increased “utility” or “flexibility” the subject had when compared to the comparables. The court finds her conclusions have no support in the trial record and are not in accord with appropriate appraisal technique.

To begin with, evaluating the relative marketability of two parcels (a subject and a comparable) obviously is the goal of all appraisal adjustments. If one parcel is in a favorable location, an appropriate adjustment is made to reflect that because this fact makes one more marketable than the other. Similarly, adjustments for time, zoning, frontage, physical character and many of the typical adjustments made as part of the appraisal process all are aimed at ascertaining the effect each factor has on the relative marketability of the two parcels.

Ms. Brunswick did not point to any accepted appraisal principle, nor to any judicial decision, that allows for adjustment based on a generalized category of “marketability,” as opposed to adjustment to account for a specific factor, such as location, size, zoning, frontage, etc., that has an impact on marketability. Since all of her comparables were in the same zoning category as the subject, or an equivalent category allowing for the same wide variety of potential uses (including the residential apartments Ms. Brunswick referenced in her explanation of the marketability adjustment), her contention that the subject had more potential developmental flexibility than the comparables necessarily was based solely on its greater size. This contradicted both her testimony[2] and that of defendant’s appraiser that a negative adjustment, not a positive one, is necessary when comparing a larger subject with a smaller comparable. The court finds her contention that this greater size should give rise to an upward adjustment because it allows for more flexibility in the layout of any potential development was not only contradictory to basic appraisal principles, it had no evidentiary support (see e.g. Parisi v State of New York, 62 Misc 2d 378 [Ct Cl, 1970]).

Removing the marketability adjustments, and applying a −15% adjustment to Claimant’s Sale No. 1 for plottage value, yields indicated values for claimant’s four comparable sales of $12.08, $8.11, $4.30 and $9.30. The first figure is based on a −60% adjustment of Claimant’s Sale No.1, making it the least comparable of the four and not particularly probative on the value of the subject. Based on the foregoing, the court finds that the subject had a fair market value of $7.75 on the date of taking.

The primary item of contention between claimant and defendant was whether the property suffered consequential and severance damages as a result of the appropriation. The burden of proving consequential damages, and providing a reasonable basis for evaluation of such damages, is on the claimant (Niagara Mohawk Power Corp. v Olin, 138 AD2d 940 [4th Dept 1988]; Mil-Pine Plaza v State of New York, 72 AD2d 460 [4th Dept 1980]). “It is widely accepted that a partial taking does not itself cause a consequential loss . . . Damages for such a loss must be based upon either the opinion of an experienced, knowledgeable expert . . . or on actual market data showing a reduction in the value of the remainder as a result of the appropriation” (Zappavigna v State of New York, 186 AD2d 557, 560 [2d Dept 1992]; see also Chemical Corp. v Town of E. Hampton, 298 AD2d 419 [2d Dept 2002]).

Claimant’s position, and proof, with respect to consequential and severance damages is summarized on page 40 of Ms. Brunswick’s appraisal where she identifies three factors as contributing to such damages:

1. The reduction of potential retail space as reflected in the report and testimony of Mr. Walsh,

2. A “loss due to the change in shape of the subject” (Exhibit 2 at 40), and

3. Damage to “the aesthetics of the property” arising from the presence of the newly-constructed sump.

While the court finds merit to the third point – that the property suffered consequential damage from the construction of the sump – claimant failed to sustain its burden of proof with respect to the first two contentions.

Both in her appraisal and her testimony, Ms. Brunswick made clear that her conclusions as to the diminished utility of the property were based entirely on Mr. Walsh’s analysis, and in particular on the “before” and “after” plans contained in his report. Mr. Walsh’s conclusion that, although the taking resulted in a 24% reduction in acreage, it caused a 64% reduction in space available for retail construction was reflected in her appraisal as a −20% adjustment for marketability applied to all four of the comparable sales in the “after” analysis, as compared to the +10% she applied before. The problem with Mr. Walsh’s analysis and conclusions is that, for the most part, they were the product of conjecture and surmise.

Mr. Walsh’s site plans did not figure into Ms. Brunswick’s “before” valuation, which was amply and independently supported by comparable sales analysis, albeit with the modifications applied by the court. While claimant established that the type of development reflected in the plans was both physically and legally possible[3], the two other factors that need to be addressed in determining the highest and best use of a parcel – financial feasability and maximum profitability[4] – were not adequately addressed. Neither Mr. Walsh nor Ms. Brunswick did any sort of financial feasability analysis or any examination of the demand for the type of commercial and residential development that is shown on Mr. Walsh’s plans. He conceded that the uses which form the basis of his plans – retail stores with residential apartments above – were just two of the “many, many, many possibilities” allowed by the Zoning Code (Vol I at 62), yet nothing was presented to indicate that any of these possibilities were considered and rejected as less productive. He specifically stated he did not consider a residential subdivision, and was not aware of the minimum lot size for such a subdivision, notwithstanding that residential development was one of the permitted uses. Most significant, he did not examine the critical questions whether there was any demand in the area for the type of development he proposed, whether his projected development was economically feasible and, assuming there was demand and that development was economically feasible, whether his plans represented the maximally productive use of the property. Neither Mr. Walsh nor Ms. Brunswick had any idea whether the proposed development represented a use of the property that was economically superior to any of the myriad of other uses allowed by the Zoning Code (see e.g. Vol I at 197-200, 208), and neither does the court.

Moreover, the contention that the taking of 24% of claimant’s property resulted in a 64% reduction of potential retail space was based entirely on Mr. Walsh’s decision to retain the same residential space in his “after” plans, despite his admission that he could have devised a plan which provided for a 24% reduction in both retail and residential space. Although Ms. Brunswick accepted this choice unquestioningly (see Vol II at 325-328), it had no evidentiary support whatsoever.

Based on the foregoing, the court finds Mr. Walsh’s evidence was without probative value on the issue of severance damages (Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535; Matter of City of New York [Rudnick], 25 NY2d 146; Broadway Assoc. v State of New York, 18 AD3d 687 [2d Dept 2005]; Nature Conservancy v State of New York, 41 AD2d 782 [3d Dept 1973]). Additionally, the court rejects claimant’s contention that Mr. Walsh’s plans reflected the highest and best use of the property and adopts the conclusion of defendant’s appraiser that the highest and best use was development in accordance with the Zoning Code, with Mr. Walsh’s plans simply reflecting one of the many possibilities. Also rejected is Ms. Brunswick’s contention that the property suffered severance damage of 30% by virtue of the alleged loss of developmental potential demonstrated in the “before” and “after” plans.

Ms. Brunswick also failed to adequately support her decision to apply a −10% adjustment for plot shape in the “after” situation. She merely testified the property went from being irregularly rectangular to flag-shaped. Precisely how this resulted in a limitation of the ability to develop this 5+ acre parcel in a zoning district that allowed for a multitude of uses was neither explained by Ms. Brunswick (she simply testified “[t]hat’s my opinion” [Vol. II at 329]), nor supported by any market data. After viewing the property, the court agrees with Mr. Barnett’s conclusion that the change in the parcel’s shape did not “change the ability of the property to be 100 percent developable under the HB Zoning” (Vol II at 459).

Thus, the court finds no basis for the claim of severance damage arising from the reduction in the parcel’s size or from the change in its shape and claimant’s allegation of severance damage must fail. However, the contention that the property suffered consequential damage from the presence of the adjoining sump articulates a legally-cognizable theory (see City of Yonkers v State of New York, 40 NY2d 408 [1976]; Dennison v State of New York, 22 NY2d 409 [1968]; Matter of City of New York (Metro Inv. & Credit Corp.), 288 NY 75 [1942]; Purchase Hills Realty Assoc. v State of New York, 35 AD2d 78 [3d Dept 1970]). Although Ms. Brunswick might have made a more complete presentation had she introduced market data to support her argument in this regard, after viewing the property the court agrees the presence of the sump has a negative aesthetic effect on the property and further agrees that such effect is reasonably expressed as a 10% reduction in value, resulting in an “after” value of $6.98/sf.

Recapitulating the damages arising from the fee taking, the court finds as follows (all figures rounded):
Before value ($7.75/sf multiplied by 310,348) = $2,405,197
After value ($6.98/sf multiplied by 236,583) = $1,651,349
Total damages = $753,848
Direct damages ($7.75/sf multiplied by 73,765) = $571,679
Consequential damages = $182,169

Additionally, claimant is entitled to compensation for the temporary easement, based on the “after” value of $6.98/sf. The easement covered 2,810 square feet and lasted 24.5 months. Accepting the 12% annual rate of return utilized by claimant’s appraiser (1% per month), the value of the easement is computed as follows:
2,810 square feet multiplied by $6.98 = $19,614
$19,614 @ 12% = $2,353.68 per year = $196.14 per month
$196.14 multiplied by 24.5 months = $4,805.43

The final item to be addressed is claimant’s contention that it is entitled to damages for a de facto appropriation of a portion of the property adjacent to the temporary easement. Such a cause of action is “based on showing that the government has intruded onto the citizen's property and interfered with the owner's property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner” (O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). As was stated by the Appellate Division earlier in that litigation:
“Even were it assumed that respondents authorized the piling of materials against petitioners' building, the use of lands adjoining a construction site for the purpose of materials storage constitutes a mere trespass, not a taking . . . . A temporary intrusion of such a limited nature, inflicting no permanent damage, does not amount to the exercise of that degree of dominion and control indicative of a de facto taking (Litchfield v Bond, 186 NY 66). Any inconvenience and depreciation in value suffered as a result of the impaired ingress and egress was incidental to a permissible exercise of the police powers and is damnum absque injuria (Bopp v State of New York, 19 NY2d 368; Cities Serv. Oil Co. v City of New York, 5 NY2d 110, cert den 360 U.S. 934; Jones Beach Blvd. Estate v Moses, 268 NY 362; Tucci v State of New York, 28 AD2d 774, affd 29 NY2d 836; Jablowsky v State of New York, 267 App Div 54, affd 292 NY 652).” (Matter of O'Brien v City of Syracuse, 54 AD2d 186 [4th Dept 1976], mot for lv to appeal denied 40 NY2d 809, appeal dismissed 41 NY2d 1008, cert denied 434 US 807).
In support of its claim that defendant occupied 62,416 square feet of claimant’s property beyond the fee and temporary easement takings for a 21-month period during the construction of the sump, claimant submitted the testimony of its president, Joseph E. Nolan, as well as photographs contained in Ms. Brunswick’s appraisal and additional photographs taken by Mr. Nolan. He testified that, after the construction work was completed, some portions of the wooded property that formerly contained trees now contain grass, although he later admitted he did not know for sure whether any trees were removed (Vol II at 408).

In any event, what was shown by the evidence was, at most, an indication there had been some minor trespass during the construction process, far short of what is required to constitute a de facto taking (O’Brien v City of Syracuse, 54 NY2d 353; Mickel v State of New York, 77 AD2d 794 [4th Dept 1980]). There certainly was no exercise of dominion or control by the defendant nor any interference with any use of the property by claimant. While claimant could receive compensation for “actual damage to property not acquired” pursuant to Highway Law §30(14) without having to establish a de facto appropriation, there was no proof of any such actual damage.

In accordance with the foregoing, claimant is entitled to a total award of $758,653.43, with statutory interest from January 30, 2004 to the date of this decision and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002 and Court of Claims Act § 10(1).

The award to claimant herein is exclusive of the claims, if any, of persons other than the owners of the appropriated property, their tenants, mortgagees or lienors having any right or interest in any stream, lake, drainage, irrigation ditch or channel, street, road, highway or public or private right-of-way or the bed thereof within the limits of the appropriated properties or contiguous thereto, and is exclusive also of claims, if any, for the value of, or damage to, easements or appurtenant facilities for the construction, operation or maintenance of publicly owned or public service electric, telephone, telegraph, pipe, water, sewer or railroad lines.

Ordered that to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Let judgment be entered accordingly.

February 23, 2007
New York, New York

Judge of the Court of Claims

[1].Although defendant suggested the amount should have been greater because the structure was listed in the National Register of historic places, defendant offered no proof what effect that designation would have on the valuation.
[2].Ms. Brunswick: “what we have found in the marketplace is that typically larger parcels will sell for lower unit values and vice versa. Conversely, a smaller property may sell for a higher unit value. That has been established in the real estate market” (Vol I at 153).
[3]. Defendant’s contention that the Zoning Code did not allow for residential apartments as an accessory use in Hamlet Business areas was incorrect (see Zoning Code, §280.45[C]), and was based on citation to a different portion of the Code (§280-13B[13]) applicable to different zoning categories.
[4].See Claimant’s appraisal (Exhibit 2 at 22), citing The Appraisal Institute, The Dictionary of Real Estate Appraisal.